849 F. 2d 1476 - Swierkowski v. Commissioner of Internal Revenue

849 F2d 1476 Swierkowski v. Commissioner of Internal Revenue

849 F.2d 1476

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Victor and Dorothy Swierkowski (the Swierkowskis), pro se, appeal the tax court's dismissal of their petition for redetermination for failure to prosecute. They contend the Commissioner and the tax court lacked jurisdiction over them. They also seek a writ of mandamus directing the Commissioner to respond to their jurisdictional arguments. The Commissioner requests sanctions on appeal.

3

The Swierkowskis contend the tax court abused its discretion in dismissing their petition for failure to prosecute because the Commissioner and the tax court lacked jurisdiction over them. This contention has no merit.

4

Congress has the power "to lay and collect taxes" and "to make all laws which shall be necessary and proper for carrying into execution" all of its enumerated powers. U.S. Const. art. I, Sec. 8, cls. 1 & 18. Congress has authorized the Secretary of the Treasury to make the inquiries, the determinations, and the assessments of all taxes imposed by Title 26. 26 U.S.C. Sec. 6201. The tax court is constitutional and has jurisdiction to determine the amount of a deficiency. Redhouse v. Commissioner, 728 F.2d 1249, 1253 n. 2 (9th Cir.), cert. denied, 469 U.S. 1034 (1984). The tax court's jurisdiction was invoked when the Commissioner issued a notice of deficiency advising the Swierkowskis that their 1981 tax return was deficient. See Abrams v. Commissioner, 814 F.2d 1356, 1357 (9th Cir.1987). Thus, the Commissioner and the tax court had jurisdiction over the Swierkowskis.

Here, the Swierkowskis refused to cooperate with discovery procedures, meet with IRS representatives to stipulate to facts, or produce documents in support of their claim that the deficiency was incorrect. Both the tax court and the Commissioner warned the Swierkowskis dismissal would result if they failed to comply with tax court rules. Because the Swierkowskis refused to comply with the tax court rules, the tax court properly dismissed their petition under Rule 123(b). See id.

7

The Swierkowskis' petition for writ of mandamus should be denied because their challenge to the Commissioner's jurisdiction is properly before this court on direct appeal. See Columbia Broadcasting Sys., Inc. v. United States District Court, 729 F.2d 1174, 1177 (9th Cir.1983) (for writ of mandamus to issue, the party seeking the writ must show that he has no other adequate means, such as a direct appeal, to obtain the desired relief).

8

The tax court has already awarded the Commissioner $500 in damages under 26 U.S.C. Sec. 6673 because the Swierkowskis presented a frivolous case. This appeal is equally frivolous. We affirm the imposition of sanctions below and award double costs to the government pursuant to Fed.R.App.P. 38.